One of the most important issues surrounding divorce or the separation of spouses concerns the support of the parties’ children. Courts in Virginia recognize both the common-law and statutory obligations that are imposed upon parents to ensure that their children are properly provided for where the parties are separated or divorced.
Courts order child support for two basic reasons: first, because it is considered proper that children be cared for regardless of whether their parents are together or separated; second, the state is aware that if the parents do not support their children then the obligation is likely to fall on the state and therefore its taxpayers. This policy choice is so strongly held that the General Assembly has vested in courts the authority to enforce support orders through the power of contempt. Put simply, child support is not simply another financial obligation that can take its place in line behind other obligations a party might have. By law it is considered a primary obligation that must be satisfied before any others. The following is meant to give a rough guide to how a child support case is filed, how support is calculated, and some of the issues that tend to come up in support cases. It is important to bear in mind however, that each case is dependent on its own facts and evidence. If you are seeking court-ordered child support, you are strongly advised to consult an attorney of your own choosing.
- When and where should I file for child support?
A. Child support cases usually arise in two contexts: either (i) as part of a divorce case or (ii) as an independent action when parents separate and they have no agreement regarding child support. If support is an issue in a divorce case, it is requested as part of the relief asked for in the Complaint for Divorce, which is filed in Circuit Court. If support is sought independently of divorce a petition for support is filed in the Juvenile and Domestic Relations Court, typically where the party who is to pay resides.
- How long does support last?
A. By statute, support lasts until a child turns 18 years of age or graduates from high school, whichever is later. If the child is over 18 and remains in high school, support may last until the child graduates or turns 19, whichever is sooner. Child support can also be terminated if (i) there is a change of custody or (ii) the child is declared to be emancipated by the court. In either case, the termination of child support requires a court order to be effective.
- So support doesn’t last through college?
A. The only way to extend a child support obligation through college would be for the parties to enter into an agreement to do so, usually as part of a Property Settlement Agreement (“PSA”) incident to a divorce. An agreement to extend child support can be made enforceable by the court (as is any other child support obligation) by incorporating it into the Final Decree of Divorce. This allows the court to use its contempt powers to ensure compliance.
- How exactly is child support determined?
A. The formula for determining child support is found in Virginia Code Section 20-108.2. Like many states, Virginia uses what is called an “income-share” formula. As an example, consider a couple with one child and suppose that one party makes $3,000 per month in gross income and the other makes $2,000 per month for a total monthly gross income between the two parties of $5,000 (“gross income” is broadly defined by the statute, but first and foremost it refers to income that is earned prior to the deduction of any taxes or other expenses and obligations).
The statute contains a table which calculates the amount of monthly child support both parties should pay for one child based on the parties’ total monthly income. For purposes of this example and for the sake of simplicity let’s assume it is $1,000. This total obligation is then divided between the parties in proportion to their monthly gross incomes; since $3,000 represents 60% of the $5,000 monthly income total, the party earning this amount would be responsible for 60% of the child support obligation (in this case, $600), and the party earning $2,000 per month would be responsible for 40% of the obligation ($400, as $2,000 is 40% of the $5,000 monthly income total).
Normally, the party who does not have primary physical custody of the child will pay the amount of his or her obligation to the party who does have primary physical control. Additionally, the non-custodial parent would be responsible for a similar proportion of any job-related daycare expenses of the custodial parent. Finally, if the custodial parent is carrying health insurance for the child, a similar proportion of the amount that is paid for the child alone is included in the support calculation.
- How do I calculate the child’s portion of the insurance cost?
A. This is typically done by subtracting the cost of insurance for the parent from the cost of a similar family plan.
- Is the monthly support amount “set in stone?”
A. A. Not exactly. Section 20-108.2 defines the amount as a “rebuttable presumption,” although this presumption is generally followed very closely by the court and must be reflected in its entered order.
- How can the presumption be rebutted?
A. Virginia Code Section 20-108.1 lists a total of 15 factors that can be used to rebut the presumptive amount calculated pursuant to the formula set forth above. These factors include: (i) monetary support that the paying party may be paying for other family or former family members (for instance, children from a prior relationship), (ii) the special needs of a child, and (iii) income imputed to a party (i.e., where it can be proven that a party is deliberately earning less than he or she should be earning), among others. In order to have the presumptive amount successfully rebutted, a court is required to first determine the amount of presumptive support, and then make a written finding that, due to the existence of one or more of the listed factors, the award of the presumptive amount would be unjust. All of these findings must be reflected in the court’s order.
- Suppose that a child support order is entered that obligates me to pay a certain amount of support based on my income. Sometime after the entry of the order I change jobs to one with a lower income. Can I use the fact of my lowered income as a reason to pay less child support?
A. As mentioned above, one of the factors a court can look at under Virginia Code Section 20-108.1 is whether a party should have income imputed to him or her. A party that voluntarily changes employment to a lower paying job may petition the court to lower his or her support obligation, and under the statute the court is required to evaluate whether the decision to change employment was reasonable and made in good faith, and not for the purpose of avoiding or minimizing a child support obligation. The burden is on the petitioner to prove his or her good faith in making the employment decision.
- How does an award of “shared legal custody” or “split legal custody” affect a child support award?
A. “Shared Legal Custody” describes an arrangement where the party who is not the primary custodial parent has visitation with the child for more than 90 days out of the year. For purposes of calculation, a “day” is defined as a period of 24 hours, however, if the parent with the non-primary custodian has the child overnight for a period of less than 24 hours each party is presumed to have had the child for one-half of that day. If the non-custodial parent’s time with the child exceeds 90 days, the formula for determining child support is adjusted to account for the extra time and expense that parent will have in caring for the child.
“Split Custody” describes an arrangement where each parent has primary physical custody of a child or children born or adopted by the parties (in other words, custody of the children are “split” between the parties), in which case a separate family unit is deemed to exist for each parent. In this case, child support is determined for each family unit and child support is adjusted by setting off the support each parent owes to the other.
Note that the determination of a “shared” or “split” custody arrangement can have a very significant impact on the amount of support a parent may have to pay.
- A. In instances where a party is awarded both spousal and child support, the court will first determine the amount of spousal support based upon the parties’ incomes. This is because spousal support is considered income to the receiving party, and at the same time reduces the income of the paying party. The child support is then calculated with the parties’ revised income figure using the formula described above.
It is very important to understand that a payment of spousal support cannot be used to set-off a payment of child support, or vice versa. The two obligations are considered separate and are meant to serve separate purposes.
- If I am required to pay child support, do I have the right to monitor how the support is spent?
A. As a general rule, no. Child support is paid to the receiving party for the purpose of contributing to payment for the day-to-day expenses of the parties’ child or children. A paying party who believes that the money is not being used for this purpose may petition the court to modify support, but that belief must be supported by sufficient evidence.
- Can payments that I make for the benefit of my child, such as clothes, toys, food, etc., during my visitation time be credited toward my child support obligation?
A. No. The child support obligation is meant to be your contribution toward the child’s day-to-day expenses while he or she is with the primary custodial parent. You have responsibility for the child’s expenses while the child is with you.
- How does failure to pay child support affect visitation?
A. Strictly speaking, it doesn’t. Support and visitation are considered separate issues. The remedy for non-payment of child support is to file an action for contempt. If a court were to determine that despite the non-payment of child support, the best interests of the child would be served by continuing contact with the party who failed to pay, then in all likelihood visitation would continue. Similarly, a party who pays child support as ordered could be denied visitation if the court believed that was best for the child. However, a party’s failure to pay child support might signal to the court that the party does not have the best interests of the child in mind, and this could be used as a factor to limit or curtail visitation.
- How is a child support order enforced?
A. As mentioned above, a support order is enforced through the contempt power of the court that issued the support order. This can be done by a party filing a motion requesting that the delinquent party be required to appear in court and explain why he or she should not be held in contempt for non-payment. It is also possible to utilize the services of the Virginia Division of Child Support Enforcement in order to have the motion filed and heard.
- How can child support be modified or terminated?
A. It is important to bear in mind that once a child support order is entered by a court, the parties cannot on their own change its terms, particularly as to the amount or timing of payment. This is because the receiving parent is deemed to be acting in trust on the child’s behalf. What this means in practical terms is that the parties’ agreement, without more, would not relieve the paying party of responsibility until a subsequent order is entered by the court approving the change. A support arrearage can result from non-payment, with the arrearage becoming a judgment debt by operation of law, and the paying party could remain subject to the court’s power of contempt. This, in turn, could result in an order to require payment at some future date even if this date is beyond the child’s majority. The only way to modify or terminate a court-ordered child support obligation is to enter a subsequent order with the court that has jurisdiction over the matter to either modify or terminate the original order. This usually requires proof of a material change of circumstance justifying the change, but often a court will enter such an order upon the agreement of the parties that the order would be appropriate if entered.